Elias D. Hunter vs. John Hunter, jun. Elizabeth D. Hunter, Ann M. Hunter, Adele Hunter and Elias D. Hunter, jun, 17 Barb. 25

By the Court, S. B. Strong, J.

As all persons now in being who can have any interest, according to the statements in the pleadings and the proofs in this action, either in the property to which the testator was at any time entitled in his own right, or that which descended to his wife from her father, are before this court as parties, (except Mary Mills, concerning whose estate or rights under the will no question exists,)—as the questions which have been raised upon the will necessarily involve to a considerable extent a consideration of the tenor and effect of the deeds—as the plaintiff calls for, and the defendant consents to, a judicial construction of all those documents—and as the assent of the parties has reference only to the mode of procedure in matters over which the court has the requisite jurisdiction—I shall consider the deeds, so far as it may be necessary in order to determine what was the extent of the testator’s property and power at the time of his decease, and what passed by his will.

The deed from the testator and his wife to Ludlow, conveyed all her share, right and proportion, of all the real estate in the state of Hew-Tork, whereof her father, James Desbrosses, died seised, and to wMch she was entitled as one of the heirs at law of her father, together with the appurtenances, and the rents, issues and profits thereof. The description of the principal subject matter conveyed was sufficiently broad to comprehend rent's reserved upon perpetual leases, even if rents had not been, as they were, particularly designated.

Such rents are, according to Blackstone, (2 Com. 41,) incorporeal hereditaments. As such they are descendible from those to whom they are reserved, (1 Just. 12 b. Watkins on Descents, 290. Prest, on Abst. 54.) The case of Payne v. Beale, (4 Denio, 405,) which was cited on the argument by the counsel, for the defendants, merely decided that a landlord having a mere right of forfeiture, by a reentry for non-payment of rent, has no interest or estate in thé lands which can be sold on execution.

Judge Jewett, who delivered the opinion of the court, admitted that in a strict legal sense the terms “ lands, tenements and real estate,” or one of them, may comprehend every thing of a permanent nature that may be holden, and may thus embrace rents, (under perpetual leases.) The word seised, does not confine the description to tangible, property. “ Seisin,” as was very properly decided in Van Rensselaer v. Poucher, (5 Denio, 35,) has reference to the estate, and not to the thing in which the estate exists. The deed from Ludlow conveyed the same property to the testator.

It was to be held by him in trust to and for the use of the testator and his wife during their natural lives, and for the use of the survivor during his or her life. There were contingencies upon which the entire estate was to vest in the testator, but as they never happened, it is unnecessary to mention them here. . Upon the death of the survivor of the two, the property was to be held in trust for the use of the plaintiff, if he should then be a minor, until he should attain the age of twenty-one years; or if he should then be of full age, or when he should attain that age, it was to vest in him absolutely.

It was contended by his counsel that by the terms of the deed the absolute title was to vest in the plaintiff whenever he should attain his majority, although it might be in the lifetime of but one of his parents. I do not so understand that deed-. The grant for the use. of, or to, the son, is expressly “ upon the death of both his parents.” That too, was manifestly in ■ accordance with their design. They did not intend to deprive themselves, under any contingency, of the full enjoyment of the property, nor of the exercise of the powers which they reserved over it.

There is some singularity in this part of the deed. The property is not to be held in trust, and some one is to stand seised of it after the death of the trustee, without the designation of any substitute.

If the clause, that, “ when the son should attain the age of twenty-one years, then the trustee should stand seised of all the estate, to and for the sole use, benefit and behoof of such son, his heirs and assigns, in fee simple forever, without any further trust of, and concerning the same,”' should be construed by itself, there would be no question but that the plaintiff became seised of the absolute legal estate in the premises when he attained his majority, although his father was then alive and lived many years afterwards.

But the rule is, very properly, that in construing an instrument in which there are apparent discrepancies, the whole must be taken together, in order that, if possible, the inconsistencies may be reconciled.

Certainly there would be discrepancies in the insulated provisions that the property was to be held for the entire use of the father and mother, and the survivor during the life of the survivor; that the son was to become seised of it in fee simple on his attaining the age of twenty-one years, although his parents, or one of them, might then be living; and the further provision, that if the son should die during the natural lives of his parents, the property should go to the father, subject to the right of the mother during her life, in fee simple.

These difficulties are reconciled by construing the deed as providing that the property should be held for the use of the parents and the survivor, during life, and that upon the death of the survivor and the full age of the son, it should vest in him absolutely; and such, in my opinion, is the true construction.

The trust estate, and consequent suspension of the power of alienation, might have continued beyond the lives of the testator and his wife, had both died during the minority of the son, but as they could not have extended beyond the death of the son, that would not have exceeded the time allowed by law when the deed was executed. The testator wais authorized to sell with the con'seAt of his wife, all or any part of the lands belonging to the Desbrosses estate situate in the city of Hew-York, and to receive and retain the proceeds to and for his own use.

That power was exercised only as to one lot, and no question has been raised as to that, or its avails. Authority was also conferred upon the testator, his heirs and assigns, or the guardian of such of his heirs as might be minors, to make sales or leases of all or any part of the estate included in the deed from Ludlow; but it was expressly provided that the considerations, rents, issues and profits of what might be sold, should be subject to the trusts specified in that conveyance.

Under this power the testator sold a portion of the lands, and received a part of the consideration money, and a part remains unpaid. He also leased another portion of such lands in perpetuity, and received a part of the rents accruing during his life, and a part thereof is still due. He also éntered into contracts for the sale of another portion of these lands, (but executed no conveyance therefor,) and received a part qf the consideration money, and a part remains unpaid.

And he made contracts for ■ the extinguishment of the rents of a portion of the lands held under perpetual leases from Desbrosses, and has received a part of the consideration mon.ey for such proposed extinguishment, and the residue remains unpaid. ■ In all those cases where the contracts were not consummated by conveyances the legal title to the property has not been divested, and is now in the plaintiff. Consequently the requisite conveyances should be executed by him.

The provision in the revised statutes authorizing a court of equity to compel the specific performance of a contract, (for the sale of real estate,) made by any one who may have died before it was consummated, by his minor heir, is based upon the supposition that in such cases the heir has the legal title.

The power conferred by the testator upon his executors, in the 21st clause of the will, to carry into effect his unperformed contracts, is confined in terms to his own real estate; and the subsequent direction that the proceeds should be invested for the benefit of the devisees of the lands contracted to be sold, evinces an intent that the power should be limited to the sales of land which he could devise.

The power of revocation reserved to the testator and his wife ¡during their lives, and to him alone if he survived her, was limited to “ the trusts contained in the deed.” Those trusts applied to the testator and his wife, and the survivor, during their lives, and to the plaintiff during his minority, and until he became seised of the absolute title. On the death of both parents, and the termination of such minority, the plaintiff was to stand seised of all the estate to and for the sole use of himself, his heirs and assigns, in fee simple forever, without any further trust of and concerning the same.

That is clearly a legal estate, and is exempt from the power of revocation, under the strict construction to which reservations in a deed are subject, and indeed under any rational construction. There can be no doubt but that this intepretation corresponds with the intention of at least the principal grantor of the deed to Ludlow. She could not have designed to put it in the power of her husband to divert all her patrimonial property from her son, and possibly in favor of his children by a second wife.

It is manifest from the whole scope of the deed, that it was • not the intention that a sale of any portion of the lands should be considered as an absolute revocation pro tanto. The consideration money was to be substituted for the land, and subject to the same trusts. Its ultimate destination was to be the same. When it was designed to confer the power upon the testator to divert the purchase money from the general uses specified in the deed, as to the land, and to vest the title to it absolutely in himself, it was given in explicit terms.

Thus he was expressly authorized “ to take, have, and retain the proceeds of such lands situate in the city and county of New-York as he might sell, to the use of himself, his executors, administrators and assigns, without any account of and concerning the same.” The testator was undoubtedly entitled during life to the rents, issues and profits of the unsold lands, and to the interest accruing on the consideration moneys of such portions of the real estate as he had sold, or contracted to sell.

Upon his death the plaintiff became seised in fee of the unsold lands, and the rents on the then existing and unaffected leases, and entitled to the absolute property in the consideration moneys for that portion of the estate which had been sold, whether it had been paid to the testator, or remained unpaid at the time of his decease.

What I have said as to the interests of the testator and of the plaintiff in the Desbrosses estate, or the avails thereof, has no reference to any interest in that portion of such estate which was included and conveyed in and by the deed to the defendant, John Hunter, junior, after the execution of that deed. The premises described in the conveyance to John Hunter, junior, consisted partly of lands held by the testator in his own right, but principally of lands which had descended to * the testator’s wife from her father, and were included in the deeds to and from Ludlow.

Ho question was made, on the argument, and therefore none will now be considered, as to the power and right of the testator, and the plaintiff and his wife, to convey the absolute title to that portion of those premises which had belonged to the Desbrosses estate. The deed to John Hunter, jun. was confided to the custody of Mr. Powers, and was not to be delivered to the proposed grantee until he should obtain the age of 25 years.

If he should die under that age, having married with the consent of his parents, and having lawful issue at the time of his death, (as I interpret the declaration of trusts and objects executed at the same time with the deed,) the title to the premises was to vest in, and of course the deed was to be delivered immediately to, or for the benefit of, such issue.

I conclude that the term having lawful issue applies to the time when the grantee might die under the appointed age, as that construction harmonizes with the previous declarations, twice made, that if he should die under such age without leaving lawful issue, the deed should be destroyed and the property go elsewhere.

Whatever doubts may have formerly existed relative to the true construction of the words, “ dying without leaving lawful issue,” our revised statutes, which were in force at the time when the deed which I am now considering was executed, have provided that as to any ulterior disposition of property by way of remainder, the failure in such cases is at the time of the death of the ancestor.

The use of the terms does not, therefore, create an estate tail by implication in John Hunter, jun. during Ms minority, to be forfeited, in the event of his death under 25, at the time when he wouM, if living, have attained that age; nor are the ulterior estates made dependent upon a contingency too remote to take effect. The suspension of the power of alienation is limited to the single life of John Hunter, jun. It was contended by the plaintiff’s counsel that the deed to John Hunter, jun. must be inoperative and void, as one of the grantors had died before the time specified for its delivery to the grantee.

I shall not consider whether the objection, if tenable at all, would be applicable to the -whole property, or only to that portion of it which the testator held at the time in his own right, as I am clear that it cannot be sustained.

The rule is well settled that when a deed is at first delivered to a third person as an escrow, such delivery is good and valid, and vests the title on the performance of the condition, or happening of the specified contingency, and therefore if either of the parties dies before the condition is performed, and the condition is afterwards perfected, the deed avails; for as there .was traditio inchoata in the lifetime of the parties, and postea consummatio existens by the performance of the condition, it takes effect by the first delivery. (Shep.

Touch. 59.) There is primarily a quasi creation of an estate, subject to be defeated by the failure to perform the stipulated condition. If there should be any tMng in the condition requiring action on the part of the grantor or grantee, which he alone could perform, the death of the required actor without performance, would, of course, put an end to the inchoate estate. But clearly, that was not the case here. The title in tMs case is yet alive, and may be perfected by the delivery expressly prescribed or impliedly authorized by the written declaration accompanying the deed.

The declaratory instrument evinces the intention of the grantors, that the premises, or their avails, should be held and managed during the period intervemng beteween the primary and eventual delivery of the papers for the benefit of the grantee or his heirs, should either become entitled to the property. Possibly such might have been the effect of the transaction, without any written stipulation, as an escrow takes effect, if at all, from the first delivery. (Ruggles v. Lawson, 13 John. 285. Wheelwright v. Wheelwright, 2 Mass. Rep. 447. Hatch v.

Hatch, 9 Id 307.) Although it is expressly declared in the explanatory instrument accompanying the deed, that those papers were to be placed in the hands of Mr. Powers as an escrow, yet there are some provisions for intermediate action. Such are the reservations or creations of power to manage, lease or sell the lands, to collect the rents and moneys which might be due on the contracts of sale, and to invest the moneys which might be received for the benefit of John Hunter, jun. provided he should eventually be entitled to the property.

These, to give them any effect, must be deemed declarations of trust, which it was competent for the grantors, under the circumstances, to make, and as Mr. Powers might be considered as the trustee of the grantee, to receive and hold the deed provisionally, for him, they became and continued effective. The will recites that the testator had given to his grandson the premises described in the deed, in fee simple, and purports to ratify and confirm forever the deed and gift to him.

The recital is correct as to the extent of the estate when it should vest, and taken in connection with the deed, can mean nothing more. The devise was, as it purported to be, simply a ratification and confirmation of what had been done, and was probably designed to save any question that might result from the management and disposition of the property by the testator, subsequent to his execution of the deed. The power reserved or given to the testator, by that deed, extended no further.

It was by implication merely, and could be exercised only upon the contingency of the death of John Hunter, jun; before attaining the age of. twenty-five years, without having lawful issue. That certainly would not sanction any devise to the living John Hunter, jun.

Possibly the testator might, notwithstanding the deed, have given to the grandson the income which should accrue from the lands previously held by him, the devisor, in his own right, between the devisee’s ages of 21 and 25 years, but that was not done, and as to the Desbrosses portion of the deeded lands, or any avails thereof, he had no power of disposition whatever, except what he derived from the deed.

Besides; the rents, issues and profits of the real estate, and the income which might be obtained from what should be sold or in any manner received under the deed, were to be held by the testator as a provisional trustee, .and were not affected by any bequest of Ms personal estate.

In the event of the failure of the deed to take effect in favor of the proposed grantee or his issue, that part of-the premises which belonged to the Desbrosses estate will revert to, or remain hp the plaintiff, under the Ludlow deeds, and he will be entitled to the residue, as it did not pass under a will riot purporting to dispose of it specifically, as the heir at law of the testator. He has, therefore, all the title to the whole of the property which that deed purports to convey, subject to the eventual estate of John Hunter, jun. or his issue.

The plaintiff will be entitled to the rents and profits of the real estate, and the income of the personal estate which shall accrue between the times when John Hunter, jun. shall attain the age of twenty-one years, and when he or his issue shall become entitled to the deed, and the title in him or them be perfected, as the direction for the accumulation of such rents, profits and income, for the benefit of John Hunter, jun. after the termination of his minority, is in contravention of the revised- statutes. (1 R. S. 726, §§ 37, 38.

Id. 773, 774, §§ 3, 4.) The intended grantee, while the deed to him was held as an escrow, had no expectant estate which gave him a right to the intermediate rents and profits, under the 40th

section of the title relative to the creation and division of estates. There can be no valid existing limitation of an estate, under an escrow, until it haá become effective by the eventual delivery. Upon the whole, I am satisfied that the will neither passed nor in any way affected the title to the premises described in the deeds to and from Mr.

Ludlow, or in the deeds and accompanying explanatory instruments; to John Hunter, jun.; or to the proceeds, avails, rents, issues, profits, or income thereof, (except, of course, the rents, issues, profits and income of the property, or its avails, conveyed by the Ludlow deeds, winch accrued previous to the testator’s decease.) An account must be taken of what was received by the testator on account of the property included in the Ludlow deeds, beyond the accruing income, and also of so much of the accruing income as remained unpaid at the testator’s death ; and it must be declared that the principal moneys'which may have been received by the testator, or which may have remained unpaid at his death, belong to the plaintiff; and that such unpaid part of the income was the property of the testator, and passed under his will as a portion of his personal estate.

An account must also be taken of all the testator’s receipts, on account of the property proposed to be conveyed by the deed, to John Hunter, junior ; and the amount must be paid to, or retained by, the plaintiff, subject to the eventual disposition prescribed in that deed and the accompanying instrument.

This disposes, (so far as my decision can go,) of many of the questions raised by the pleadings and discussed' on the argument, relative to the validity and effect of various provisions in the wilh The devise to the testator’s granddaughters of all his lands in great lot Ho-. 25, in the Hardenburgh patent, lying in the county of Greene, from and after the death of his son, can operate only upon the portions of that lot held by him in his own right, for reasons which have been already stated by me. That devise, too, includes only the testator’s part of the lot which was situated in the county of Greene.

The words, “ lying in the county of Greene,” could not have been designed as descriptive of the last preceding antecedent, the Hardenburgh patent, nor of the lot, as neither lies wholly in that county; but must have referred to the lands intended to be devised. It may apply to them without any contradiction or discrepancy; as words of restriction after a general designation, are not productive of inconsistency. So too, the general rule that the reference must be to the first antecedent, is inapplicable to a description consisting of several particulars.

In that case each qualifies the primary and principal designation, and neither can be rejected, unless it is contradictory, and then only the less important. In this case, the description, taken together, calls for the following qualifications of the lands devised. They must be the testator’s ; must be in lot Ho. 25 of the Hardenburgh patent; and must lie in the county of Greene. As there were lands to which each of those particulars applied, none others were included.

So, too, I am satisfied that the words, “ from and after the death of my said son,” which followed both of the devises to which I have last alluded, and the intervening devise to the granddaughters, of the testator’s other lands in the county of Greene, is applicable to each. That is evident from the punctuation, and results from the well established rule that a general clause following several particulars, with which it is connected by the same punctuation, qualifies the whole. The rule may not be universally applicable, but it .is generally so, and there is nothing in this case calling for a departure.

On the contrary, it corresponds with the intent of -the testator to confer upon the plaintiff a life estate in the bulk of his property. In devising his .property situated in the county of Greene, the testator uses the words, “ all my lands,” without any other denomination of.-the subject matter, and it was made a question on the argument whether those terms, used in that clause and elsewhere, and standing alone, included rents under perpetual leases. I have already said that the right to those rents was real estate, and passed under a devise of such estate, ré'ferring to the locality of the land.

But whether a devise in general terms, of the testator’s lands in a county, -passes his right to rents under perpetual leases on lands in such county,- is a much more difficult.question. A question somewhat, although not entirely, analogous, was discussed but not decided in the case of Huntington v. Forkson, before the court for the correction of errors, (6 Hill, 149.) It was also raised in the late supreme court, in the cases of The People v. Haskins, (17 Wend. 463,) and Payne v.

Beal, (4 Denio, 405.) The question in the two cases in the supreme court was whether the landlord’s right could be sold under an execution against real estate. In the case in Wendell it was decided that it could be; in the case in Hill it was decided the other way. In a case lately before the court of appeals it was decided that the lessee had a determinable fee, and the lessor had, in addition to his right to receive his rent, a mere right of forfeiture. When there is a determinable fee In one, there can be no existing estate in the same land in another.

The future estate is merely by way of substitution, and cannot arise until the determination of the primary fee. If this had been a new question I should have had considerable difficulty in coming to a conclusion that there could be a present fee in one, (which supposes the absence of any existing estate in another,) and at the same time, a right to receive and enforce the payment of rent out of the land, and an accompanying right of forfeiture which may be enforced at any moment, in another.

However, it seems to be settled in this state, that the landlord has no present estate in the land; that his right is not even sufficient to support a surrender to him from the tenant. That may well be, and yet the right may pass under a grant or devise of the land. The- rule of construction, as to the description of the thing granted or devised, is liberal. Thus the same word may be applied differently, according to the understanding in that part of the country where it is used.

Lord Coke gives many instances of the kind, and the supreme court of this state has decided that the word timber may include fencing stuff, if that corresponds with the local

interpretation. The title to the soil ordinarily passes under the general denomination of land. The reason for this—that it is incidental to the reversion—is not strictly applicable to leases in perpetuity; still the fact that there is a right of forfeiture may justify, if it does not call for, a similar

interpretation. The propriety of this construction is supported by its conformity to the general understanding in the parts of the state where such leases prevail. Formerly the right of forfeiture dependent upon the breach of a .condition could neither be granted nor devised, but passed by descent to the heir of the original grantor. But by our present statute of wills, a possibility in real property which may descend to the heirs, may be devised. (2 R. S. 57, § 2.) My impression is strong that the interest of the landlord, under the leases in question, passed under the devise of the land, and I must so decide.

In the instances where the testator had entered into contracts for the sale of lands held by him in his own right, the portions of the purchase money whieh were actually received by him became a part of his personal estate, and passed as such under his will; but the unpaid portion must go to the devisees of the respective lands. This disposition of the unpaid purchase moneys is clearly made in the 21st clause of the will. The word “ thereof” following the denominative “ devisees” clearly designates the special, rather than the general, devisees.

The codicil .empowers the executors to insert in the conveyances to be made by them, the necessary covenants and conditions to carry out and effectuate such contracts, and to bind the testator’s estate and assets for their performance and fulfilment, so far as it may be lawful and proper for them to do so in their character as executors, and without unnecessary personal liability.

It appears to me that this power of “ binding the estate and assets” is limited to the consideration, whether in money or securities, which the executors may receive under the respective contracts, each severally and for itself; and that to execute the power they are authorized to demand the requisite security to the purchasers, for the performance of the contract stipulations from the respective devisees of the lands contracted to be sold. To' extend the power any further would be manifestly improper, as .it might cause serious and possibly lasting embarrassments.

When the devisees are minors the securities should be executed by their guardians, yrho can exact the proper change of securities from their wards, when they shall arrive at full age. Such securities will be amply sufficient, and all that the purchasers can reasonably require. Indeed, they could be compelled to accept them, if their sufficiency should be satisfactorily established, in order, if that should be necessary, to relieve the residue of the estate.

In the bequest of twenty thousand dollars to each of the granddaughters, there is a positive direction that their legacies shall be paid out of the personal estate. That, taken by itself, would make them payable out of that part of such estate which was not specifically bequeathed. In the previous specific bequest of certain funds in the hands of Mr, Powers, to the grandson, it is declared that they are- subject to the payment of the legacies to the granddaughters.

That neither directs nor implies that those legacies shall be paid out of such funds primarily, but that a resort may be had to them if it shall become necessary; in other words, that if either shall fail it shall be the specific legacy, contrary to what would have been the result if it had not thus been qualified. Those funds may be applied towards the payment cf the legacies to the grand-' daughters, in aid of that portion of the estate liable therefor, according to the usual rule, but not otherwise.

Had they been made first liable, as their value is much less than the amount of the legacies to the granddaughters (according to the admission of all the parties,) the specific legacy must inevitably have been wholly nugatory. In determining what is given, where the words are susceptible of variant explanations, a resort may be had to surrounding circumstances.

Should John Hunter, jun. attain the age of twenty-five years he will, as I have already intimated, take lots 4 and 5 in that part of the Hardenburgh patent lying in the county of Sullivan, under the deed, and not at all under the will, and consequently there will be no remainder in those lots, to pass to the granddaughters, under the codicil. The devise over of the share of the Sackett farm of either granddaughter who may die in the lifetime of her father, to her lawful issue if she shall leave any, must necessarily take effect, if at all, immediately upon the termination of the life estate of the father.

The devise to the survivor or survivors or the issue of any whq may have previously died, is not confined in terms to a death within the lifetime of the father. But as the two clauses are connected by the copulative conjunction “ and,” both relate to the same property, and provide for consistent alternatives, there can be no doubt that the testator contemplated in each the same period. Neither, therefore, suspended the power of alienation beyond the life of one person.

The restriction of the right to sell the Bayard farm until John Hunter, jun. should attain the age of twenty-five years, was upon him personally, and could not extend beyond his life, ' But if it could, and was therefore invalid, the avoidance of a condition subsequent would not defeat the estate. There is nothing in the devise of the Bayard farm, or of Hunter’s Island, Hart Island and the Provoost farm, which can suspend the absolute power of alienation as to either for more than two lives in being at the death of the testator.

A life estate is devised to the plaintiff; and the disposition of those lands, upon his death, will depend upon the election, or omission to elect, of John Hunter, jun. within the next forty days. Neither the right, nor prescribed omission, to elect, can extend beyond the life of the person upon whom the power is devolved. The suspension of the power of alienation must therefore be at an end before or at the time of his death, should that happen within the forty days.

Neither the requisition in the will that John Hunter, jun. should, on electing to move to Hunter’s Island upon the death of his father,- lease to his mother and three sisters the Bayard farm, for their residence, free of rent so long as they should remain single, nor the direction in the codicil that on mating such election he should execute a deed for the Bayard farm to his three sisters, subject to the use and occupation thereof by them and their mother and the survivors and survivor of them so long as they should remain unmarried, would effect a suspension of the power of alienation at all, within the meaning of the statute.

The rights of those ladies would be mere charges upon the land, which they could release. They could unite with the principal owner and convey an absolute fee in possession, at any time. Such action could not possibly be coerced, but the statute refers to the power, and not to the greater or less probability of its execution. In the case of Mason v. Jones, the judges of the court of appeals, in their consultation, agreed that the charge of an annuity for life after the termination of two lives in being, upon the rents and profits of land, did not suspend the absolute power of alienation, within the statute.

The fee simple absolute devised to John Hunter, jun. in the will, in a large portion of the real estate, is, unfortunately for him, changed by the codicil into a fee defeasible upon his dying Without leaving any lawful children or descendants at the time of his death. The codicil does not give him an estate tail by implication which our statute abolishing entails would have converted into a fee simple absolute, as the failure of issue is expressly limited to the time of his death, and without any Such limitation in the will it would have resulted from the statute relative to the creation and division of estates.

There is not the slightest reason for supposing that the fee simple devised to John Hunter, jun. in the will is reduced by the codicil to a mere life estate.

It was contended, on the argument, by the- counsel for John Hunter, jun. that the devise over to his sisters of the lands previously given to his father for life and then to him in fee, upon his dying without leaving lawful issue at the time of his death, was too remote, as it might suspend the power of alienation during the lives of his father and himself and of any number of his children who might die before him, and who might not have been in being at the time of the death of the testator.

It is true that the power of alienation might be suspended during the lives of the plaintiff and of John Hunter, jun. and any number of his children; but the statute has reference to the lives the continuance of which actually suspend the power, and the power is in no manner suspended by the lives of the children of John Hunter, jun. The suspense must necessarily fexist during the lives of himself and his father, and no longer, whether his children die in his lifetime or survive him.

The j question is not how many may die during the term of the sus-1 pension, but how many of those upon whose lives the suspension1', is made to depend. Otherwise, as thousands die every hour, there could be no suspension at all.

I am not in favor of tying up the estates of persons who are capable of taking care of them, and very much doubt the expediency of restricting the estate given in the will to the grandson and the only male descendant, in that degree, of the testator; but I must administer the law as I find it, There is nothing to invalidate the devises in the 6th, 7th and 8th clauses of the will, of certain lots in Hew-York to the three granddaughters, upon the death of their father, or to the issue; or in default of issue, to the survivors óf any of them who might die in his lifetime.

The remainder in the land given to Mary Mills for life, devised to John Hunter, jun. is included in the contingent devise over to the granddaughters, upon his dying without issue. The words in which the devise over is contained, in the codicil, are very comprehensive, and include all and every.part and portion of the real estate which passed to John Hunter, jum under the will. The charge upon the income of the estate, for the education of the grandchildren, is not void as illegally suspending the power of alienation of the real estate, and the absolute ownership of the personal property.

It might be presently released by each, but for their minority; and a suspension resulting simply from minority is not such as is contemplated by the statute. The executors are of course authorized to retain out of the residuum of the personal estate and invest the requisite fund to produce an income sufficient to complete the education of the grandchildren. They can in like manner retain and invest a sufficient amount to produce the requisite income to pay the annuity to Mary Mills. The amount in each case may be settled by Mr.

Miller, who has heretofore been appointed a referee in this action; and it must be declared that upon a separation thereof from the general fund the residue of the estate shall be exonerated from the charges, unconditionally as it respects the grandchildren, and so far as relates to Mary Miller, upon her written consent: Questions were raised, upon the argument, as to the nature and extent of the estate.of John Hunter, jun; in the Bayard farm and of his eventual estate in Hunter’s Island; Hart Island, and the Provoost farm.

My impressions as to these may be inferred from what 1 have already said, but the questions are so important to the parties interested that they should be clearly and directly settled. He takes a present fee in the Bayard farm, with a restriction as to selling it until he shall attain the age of twenty-five years, determinable on his electing, at the death of his father, to remove to Hunter’s Island, or, on his omission or refusal to do that, at his death if he should leave no lawful issue then living.

He can sell the farm on his attaining the requisite age, and give a title for it, defeasible only upon his dying without such issue, as such sale would deprive him of his right of electing to change his residence to the island, and such right of election would also necessarily fail if his father should outlive him.

He will take a fee on his father’s death, upon his electing to remove to Hunter’s Island, and executing a deed for the Bayard farm to his sisters, subject to the privilege to them and their mother mentioned in the codicil, in the two islands and •the Provoost farm, determinable in favor of his sisters on his dying without having lawful issue living at the time of his death. On his acquiring the fee he can of course dispose of such property and confer a title therefor, subject to be defeated only upon the specified contingency. [Dutchess General Term, July 5, 1853. Barculo, Brown and S. B.

Strong, Justices.] There can be no question as to the disposition of those islands and the Provoost farm, should John Hunter, jun. die in the lifetime of his father with or without surviving issue, or in case of his own election to take the same, should he survive his father. It may be proper to declare that the plaintiff is the trustee for his children, and will continue such during their respective minorities. A decree must be entered in conformity with this opinion. The necessary accounts may be taken by Mr. Miller, the former referee, whose appointment as such should be continued.

The costs of all the parties, including reasonable counsel fees, must be paid out of the residuum of the personal estate bequeathed in the 18th clause Of the will. Liberty must be reserved to any of the parties to apply to this court for such additions to the decree as may be rendered necessary by any future event.